Additional Reading for Class 5 April 28 09 Case Excerpts on Notice and Comment Procedural Adequacy.

Smith Additional Materials for Class #5 (Tues., April 28) – Page 1RECENT JUDICIAL ATTEMPTS TO PROTECT THEINTEGRITY OF PUBLIC PARTICIPATIONBY ENFORCING APANOTICE AND COMMENT REQUIREMENTSThree (and a half) Case Studiesth(Additional Reading for Class #5, Tuesday, April 28 )NOTE: Below you will find excerpts from three relatively recent appellate cases ruling onarguments by regulated parties that an agency violated Section 553 of theAdministrative Procedure Act by giving inadequate notice. The different courts come todifferent conclusions.As you read each case consider the following generic questions:1. By what legal standard(s) do the judges decide the case?2. For each case, consider the relative merits of the challengers’ view that the agencyimpaired its public participation rights through inadequate notice and relatedprocedures, and the agency’s view that it sufficiently complied with informal APArequirements. Which side persuades you more? Why?3. Notice how in each case a judicial finding that the agency violated the APA did (orwould, had the court so decided) have suspended application of the regulatory guidancein question, perhaps delaying the regulatory process or throwing the process into somechaos. This might be an unintended byproduct of a pure-hearted challenger honestlywishing merely to participate meaningfully in public proceedings – or an impure-heartedchallenger might be “using” the APA for venal strategic advantage. Which do you ...